Filed: Jan. 24, 2011
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15503 ELEVENTH CIRCUIT JAN 24, 2011 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 08-02027-CV-TWT-1 TRINA L. BAYNES, Plaintiff-Appellant, versus PHILIPS MEDICAL SYSTEMS (CLEVELAND), INC., Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (January 24, 2011) Before WILSON, MARTIN and ANDERSON, Circuit Judges. PER CURI
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 09-15503 ELEVENTH CIRCUIT JAN 24, 2011 Non-Argument Calendar JOHN LEY _ CLERK D. C. Docket No. 08-02027-CV-TWT-1 TRINA L. BAYNES, Plaintiff-Appellant, versus PHILIPS MEDICAL SYSTEMS (CLEVELAND), INC., Defendant-Appellee. _ Appeal from the United States District Court for the Northern District of Georgia _ (January 24, 2011) Before WILSON, MARTIN and ANDERSON, Circuit Judges. PER CURIA..
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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 09-15503 ELEVENTH CIRCUIT
JAN 24, 2011
Non-Argument Calendar
JOHN LEY
________________________
CLERK
D. C. Docket No. 08-02027-CV-TWT-1
TRINA L. BAYNES,
Plaintiff-Appellant,
versus
PHILIPS MEDICAL SYSTEMS (CLEVELAND), INC.,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
_________________________
(January 24, 2011)
Before WILSON, MARTIN and ANDERSON, Circuit Judges.
PER CURIAM:
Trina L. Baynes, proceeding pro se, appeals the district court’s grant of
summary judgment in favor of Philips Medical Systems (“Philips”) on her claim
asserting intentional infliction of emotional distress (“IIED”). She asserts that
Philips’s employees acted outrageously in April 2006 by making her travel to
Cleveland for a training trip and by telling her that she had to work seventeen days
with only one day off shortly after she underwent heart catheterization. Further,
she argues that Philips employees acted extremely and outrageously by: (1) making
false accusations against her during a May 2006 meeting, causing her to experience
physical symptoms of anxiety; (2) repeatedly calling her while she was on medical
leave from May through August 2006; (3) improperly disclosing her medical
information by telling the team leader that Baynes had an appointment for a
medical exam; (4) again confronting her with false accusations immediately after
she returned to work in August 2006 and thereby causing her to have an anxiety
attack; and (5) terminating her for “job abandonment” in August 2006. Baynes
says that the district court erred by failing to consider “large amounts of evidence”
and by offering “flawed justification[s] for its ruling” because it granted summary
judgment in favor of Philips.
In addition, Baynes argues that both the district court and this Court erred in
denying her motions for leave to proceed on appeal in forma pauperis (“IFP”), and
that the district court erred by allowing Philips to remove the case to federal court.
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DISCUSSION
We review de novo a district court’s grant of summary judgment. Galvez v.
Bruce, 552 F.3d 1238, 1241 (11th Cir. 2008). “Summary judgment is appropriate
when the evidence, viewed in the light most favorable to the nonmoving party,
presents no genuine issue of fact and compels judgment as a matter of law.”
Swisher Int’l, Inc. v. Schafer,
550 F.3d 1046, 1050 (11th Cir. 2008) (citing Fed. R.
Civ. P. 56(c)).
1. IIED Claim
To establish a claim for IIED under Georgia law, a plaintiff must show (1)
intentional or reckless conduct (2) that is extreme and outrageous and (3) caused
emotional distress (4) that is severe. Trimble v. Circuit City Stores, 469 S.E.2d
776, 778 (Ga. Ct. App. 1996). The plaintiff’s burden of proof as to these elements
is a “stringent one,” Bridges v. Winn-Dixie Atlanta, Inc.,
335 S.E.2d 445, 447 (Ga.
Ct. App. 1985), such that “‘the recitation of the facts to an average member of the
community would arouse his resentment against the actor, and leave him to
exclaim ‘Outrageous!’’” Yarbray v. S. Bell Tel. & Tel. Co.,
409 S.E.2d 835, 837
(Ga. Ct. App. 1991) (citing and quoting Restatement (Second) of Torts § 46(1) cmt.
d). Furthermore, even where the defendant had control over the plaintiff, as in an
employer–employee relationship, and was aware of the plaintiff’s particular
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susceptibility to emotional distress, Georgia courts find in favor of the defendant
unless the conduct at issue “inherently ha[s] an element of outrageousness or
extreme wrongfulness.” See Jarrard v. United Parcel Serv., 529 S.E.2d 144, 148
(Ga. Ct. App. 2000).
Moreover, “mere insults, indignities, threats, annoyances, petty oppressions,
or other vicissitudes of daily living,” are insufficient to establish extreme or
outrageous conduct. Id. at 147. Thus:
the law is clear that performance evaluations critical of an employee
do not fall into the outrageous category even though (i) given in crude
and obscene language, (ii) done with a smirk, (iii) conducted in a
belittling, rude, and condescending manner to embarrass and
humiliate the employee, (iv) given at a poor time, (v) tinged with the
intent to retaliate for former conflicts, and (vi) constituting a false
accusation of dishonesty or lack of integrity.
Id. (footnotes omitted). Furthermore, a supervisor’s inquiries about an employee’s
condition, even if done in a manner that embarrasses or humiliates the employee,
do not constitute the type of shocking or outrageous behavior that is necessary to
state a claim for intentional infliction of emotional distress. See Bowers v. Estep,
420 S.E.2d 336, 339 (Ga. Ct. App. 1992) (explaining that supervisors were
authorized to inquire into the appellant’s condition to make necessary adjustments
in his work schedule). Finally, the termination of an at-will employee, for any
reason or for no reason at all, does not give rise to a claim for IIED. See ITT
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Rayonier, Inc. v. McLaney, 420 S.E.2d 610, 612 (Ga. Ct. App. 1992).
Because Baynes filed this action in state court in May 2008, the district court
properly found that her claims arising from the April 2006 Cleveland training trip
and Philips’s imposition of a schedule requiring her to work seventeen days with
only one day off are barred by Georgia’s two-year statute of limitations. See
O.C.G.A. § 9-3-33 (providing that the statute of limitations for actions alleging
injuries is two years from the time the right of action begins to accrue). With
respect to the May and August 2006 meetings, the telephone calls Baynes received
while on medical leave, the alleged disclosure of medical information, and her
termination, the district court properly applied Georgia law to find that Philips’s
conduct was not sufficiently “extreme and outrageous” to support her claim for
intentional infliction of emotional distress.
To the extent that Baynes now raises claims of retaliation, harassment, and
hostile work environment, her claims are waived because she failed to raise them
before the district court. See Bryant v. Jones, 575 F.3d 1281, 1296 (11th Cir.
2009), cert. denied,
130 S. Ct. 1536 (2010).
2. Motion for Leave to Proceed IFP
We review a district court’s denial of a motion for leave to proceed IFP for
abuse of discretion. Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 (11th
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Cir. 2004) (per curiam). The district court denied Baynes’s motion for leave to
proceed IFP because it found that her appeal is frivolous. This Court denied her
March 2010 motion for reconsideration because Baynes failed to offer any new
evidence or arguments of merit to warrant relief. We will not revisit that
conclusion here.
3. Argument That Removal Was Improper
Finally, although we liberally construe pro se pleadings, a pro se litigant
who offers no substantive argument on an issue in her initial brief abandons that
issue on appeal. See Timson v. Sampson, 518 F.3d 870, 874 (11th Cir. 2008) (per
curiam). Baynes says in her Statement of Issues that the district court erred by
allowing the removal of her case to federal court. However, she fails to set forth
any argument supporting this claim; therefore, she has abandoned the issue and we
will not consider it here.
CONCLUSION
After de novo review, construing facts in the light most favorable to Baynes,
we agree with the district court and affirm its grant of summary judgment in favor
of Philips.
AFFIRMED.
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